Trips Grp6

TRIPS-IMPLICATIONS

FOR INDIA

PRESENTED BY : GROUP 6

FLOW OF PRESENTATION.      

INTRODUCTION IMPLICATIONS TRIPS AND INDIA POLICY RESPONSES CURRENT SCENARIO REFRENCES

FEATURES  

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Nondiscrimination Duration of intellectual property rights Scope of intellectual property rights Licensing Transition periods Enforcement mechanisms

INTRODUCTION. 

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TRIPS-TRADE RELATED INTELLECTUAL PROPERTY RIGHTS. TRIPS agreement came into effect on 1st January 1995. It is, to date, the most comprehensive agreement on intellectual property rights. All the members of the WTO are signatories of the TRIPS agreement.

Features of TRIPS agreement. 

STANDARD

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ENFORCEMENT

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DISPUTE SETTLEMENT

AREAS COVERED UNDER TRIPS.

Copyright  

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Copy right pertains to literary, scientific and artistic works. Copyright protection extends to expression and not to ideas, procedures, methods of operation or mathematical concepts. Reproducing, public performance, recording and broadcasting of copy right protected items are prohibited. It extends to authors life plus 50 years. It allows computer programmers and cinematographic works, the right to authorize or prohibit commercial rental of their works.

Trade marks 

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Trade marks have been defined as any sign, or any combination of signs capable of distinguishing the goods or services of one undertaking from those of other undertakings. Such distinguishing marks constitute protect able subject matter. Trade mark has a life of 7 years but can be renewed indefinitely.

Geographical Indications 

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It identifies a good as originating in the territory of a member, where a given quality , reputation or other characteristics of the good is essentially attributable to its geographical origin. Provision for protection of geograhical indications for wines and spirit

Industrial design 

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Industrial design are ornamental features of a product such as shapes, design, lines, motifs or colours. This provision protects industrial design which are innovative and original. The duration of protection is to be not less than 10 years.

Patents 

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Patent relates to invention whether they are products or processes Patents confer to the owner of a patent product, exclusive rights to prevent third party from making, using, offering for sale or importing the product Term of protection given to a product is 20 years

Continued 

Product & process to be patented should fulfill following conditions: 

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It should be innovated The development of product/process should have well defined research aspects There are possibilities of its commercialization

Layout design and integrated circuits 

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The agreement compels members to consider unlawful importation, sale or distribution for commercial purposes of a protected layout design Term of protection is 10 years

Undisclosed Information 

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These may contain trade secrets or other know-how which are sellable or have commercial value These are protected against disclosure, acquisition or used in a manner contrary to honest commercial practices

IMPLICATIONS

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Limited access to the technology by developing countries Rise in prices of medicines and a loss of consumer welfare. Income transfer to the developed countries in the form of royalties. End to imitative duplication, reverse engineering, knowledge spillovers.

TRIPS and INDIA

Implication of Patents 

Changes in India’s patent policy  

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Greater protection to IPRs Fear being expressed over impending collapse of local firms Optimism amidst expectation of large increase in patent activity of domestic actors

Effect of Patent policy on Pharmaceuticals 

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According to the Patent act 1970 process & not product could be patented This structure enabled India to achieve self-sufficiency in production of bulk drugs & check prices

Effect of Patent policy on Agriculture 

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Indian patent policy allowed very little scope to patent in the field of agriculture New patent regime to affect India’s agriculture policy as TRIPS exclude plant varieties and there exists confusion internationally on what would require patent protection. Revised patent law to allow applications for product patent in agro chemical (eg.--seed)

Research & Experiments 

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Patented invention can be used for scientific research with a purpose of knowledge creation The purpose of this exemption is to improve the protected invention and evaluate invention to request license or to test the invention

SUI Generis Rights 

With the conclusion of GATT in 1994 (Uruguay round), developing countries from one day to next found themselves under the obligation to provide some form of intellectual property rights protection on Plant varieties. TRIPS requires that members of WTO do this either through patents or some “effective SUI Generis system” at the national level

GEOGRAPHICAL INDICATORS 

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Emerged as one of the most important instrument Concept of GIs Appellation of origin Indication of source

GEOGRAPHICAL INDICATIONS covers the following areas:    

Agricultural goods Natural goods Manufacturing goods Handicrafts and foodstuff

Protection of Geographical indications.  

Common law principles Registration and protection act,1999

Convention on Bio diversity (CBD) 

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Concept of Traditional Knowledge (TK) 3 Objectives of CBD Conservation of bio diversity Sustainable use of its components Fair sharing of the benefits arising from the utilization of genetic resources. Bio piracy of TK from India in the past

Copyright Piracy 

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IIPA estimates losses stand at $331.8million to the US industries in 1997 Motion pictures-80% Sound recordings and musical compositions – 40% Computer programs : business applications -76% Computer programs: entertainment software -82%

Copyrights and related issues 

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IIPA suggests the protection period of performers to be increased from 25 to 50 years. The criminal provision act to be the toughest in the world For collective administration of copyright ,copyright societies are to set up for different classes of work.

Trademarks and service marks 

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In 1999 the bill was passed and the main features included were: protection of service marks, well known marks Extension of the term of protection to 10yrs. Enhance punishment for violation of trademark rights.

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The new legislation implies better atmosphere for foreign investment and help the Indian companies establish world wide presence.

Integrated circuit layout designs 

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A provision of Rs 22.5 million has been made for this with the Registrar of integrated circuit layout design. Sui generis protection for integrated circuits as India is not a major producer of integrated circuits.

POLICY RESPONSES

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Copy right and related rights- covered under Berne convention to which India is a signatory. India provides copy right protection for 60yrs as compared to the obligatory 50yrs under TRIPS. Trademarks- Trademarks act 1999 was introduced after incorporating the service marks as well which were not previously covered under the trade and merchandise act 1958

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Geographical Indications-the geographical indications of goods act 1999 was enacted in order to incorporate all the provisions made under TRIPS agreement. Industrial designs- to incorporate all the provisions the designs act 2000 was introduced on 11.5.2001

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Layout design of the integrated circuitsIndia being a signatory to the “Washington treaty” most of the obligations were already covered those remaining were incorporated under the semi conductor integrated circuits layout design act 2000. Protection of undisclosed information- no separate legislation has been introduced by India. courts have taken action as and when the need has been.

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Patents – to cover the obligations under the TRIPS agreements amendments were made to the patents act 1970. Amendments basically dealt with the fields of technology .the amended act was effective starting 1st January 2005.certain provisions for public interest were aslo made:

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Conditional grant of patent. Revocation of patent in public interest. Grant of compulsory license: specially incase of national emergency, extreme emergency and public non-commercial use. Use of invention for the purpose of government. Acquisition of invention and patent for public health. Bolar provision

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Bolar provision [Section 107 (A) (a)] Facilitates production and marketing of the patented products immediately after the expiry of patent protection of term by permitting preparatory action by non-patents during the life of the patents Parallel import [section 107(A)(b)] – make the product available at the lowest international price.

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A person can import the product from other sources provided that the product is launched in the market legally This exception is based on provisions of article 6 of TRIPS which states that issues of exhaustion of intellectual property should not be taken into dispute settlement

CURRENT SCENARIO.

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Intellectual Property recent developments. Patent (amendment) Act, 2005. Financial services & clinical Research IPR.

Patent Amendment Act- 2005 

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Received Presidential assent on April 4, 2005 & was notified in the Gazette of India on April 5 Introduces the product patent protection to all fields of technology, drugs, food & chemicals Replaces the patent act of 1970

Some Important Features 

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Patent will be granted with effect from the date of application, in the case of mail box application patent protection will be available only prospectively If company is into manufacturing a product prior to Jan 1, 2005, patent is subsequently granted A new form of substance is patentable only if it reserves in enhancement of known efficacy of such substance Indian companies free to export patented drugs to least developed countries

Financial services & clinical research IPR 

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Outsourcing IPR could soon emerge as new KPO Services provided   

Document writing Global filing Legal advices on Infringements

Facts Regarding IPR’s   

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India ranks 9th in International piracy list Faces losses worth 464.8 millions (2004) No. of patent application grown considerably since 2001 Latest user of patent Co-operation treaty    

Ranbaxy CSIR Cipla Jubiliant Organosys

Recent Victory For India 

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India has won a decade long battle against the granting of a patent to a Neem - based crop fungicide by the European patent office (EPO) India’s case was presented before EPO by Prof. U.P.Singh Neem derivatives have been traditionally used to make insect repellents, soaps, contraceptives & Ayurvedic medicines & under normal circumstances a patent application should always be rejected if there is prior existing knowledge about the product

References

Books 

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Pratap Ravindra ,India at the WTO dispute settlement system,1st edition 2004,Manak publications pvt ltd Watal Jayashree, intellectual property rights in WTO and developing countries,1st edition 2001,oxford university press,india.

Websites      

www.wto.org www.un.org www.commerce.nic.in www.unctad.org www.ris.org.in www.dipp.nic.in